P. v. Avalos
Filed 1/29/07 P. v. Avalos CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS AVALOS, Defendant and Appellant. | E041248 (Super.Ct.No. FVA023110) OPINION |
APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for the Plaintiff and Respondent.
Defendant was charged with the murder of Juan Jorge Solano in violation of Penal Code[1]section 187(a), and the use of a firearm during the commission of the offense[2]. As the jury trial was beginning, defendant entered a guilty plea to the second degree murder in exchange for an agreed-upon sentence of 15 years to life. The court sentenced defendant in accordance with the plea agreement.
Defendant subsequently appealed, and his application for a certificate of probable cause was granted.
FACTS
The offense took place at a ranch located in Bloomington, California, on October 31, 2004. Defendant was with a group of individuals who had been drinking beer most of the day, when around 4:00 p.m., Victor Silva, the renter of the property where the ranch was located, heard a shot. He had been in a little shed and came out to see the defendant with a gun in his hand. Silva told defendant, [d]ont do that, and defendant fired another shot and the victim was observed to be slumped over. A third shot was fired. The victim suffered three gunshot wounds; the one to the base of his brain was fatal.
While the case was pending, defendant was assigned three different counsels. During his representation by Mr. Powell, who represented defendant through the balance of the proceedings, defendant was granted a Marsden[3]hearing, where defendant complained that he had not received the discovery he had been requesting. He further noted that his witnesses had not been contacted. However, Mr. Powell confirmed that he was in the process of redacting the discovery as required by law and that his investigator had the names of the various witnesses. The hearing ended with the representation that the discovery would be provided and witnesses would be contacted.
At the beginning of the trial, the court record confirms that the parties had agreed upon a disposition subject to the approval of the victims family. Voir dire commenced during the time that approval for the disposition was sought and received. Defendant was given the standard plea agreement/waiver of rights form, which he initialed and signed. The court went over the form in detail and verified the signature of the defendant at the bottom of the form. The court canvassed the defendant concerning his constitutional rights and waiver of them.
At the time of sentencing, defendant denied having signed the plea agreement and refused to speak with his attorney. Defendants contention was brought to the attention of the court, which inquired if that was the only issue raised by defendant. Mr. Powell represented that it was. The court overruled the objection and contention as Mr. Powell represented to the court that he witnessed defendants signature on the plea form, and defendant confirmed that fact when he entered his plea. The court then moved on to sentencing.
DISCUSSION
Defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court undertake a review of the entire record.
We have invited defendant to file a supplemental brief, which he has done.
We have completed our independent review of the record and have read and considered the supplemental brief filed by the defendant.
In our independent review of the record, we have found one issue that we have independently researched to determine whether further briefing is required or appropriate. The issue is whether the court erred by not appointing counsel and proceeding with a motion to withdraw the guilty plea or a second Marsden hearing.
Our colleagues in the Fifth District recently decided People v. Eastman(Jan. 9, 2007, F049395) __ Cal.App.4th __ [2007 Cal.App. Lexis 22].) The court noted that where a defendant expresses dissatisfaction with his representation at sentencing, he must be afforded an opportunity for a hearing to air his grievances concerning his legal representation. Here, however, there was no such representation by the defendant at his hearing. His only concern from the record was whether he had signed the waiver of rights. Given the colloquy at sentencing, a subsequent hearing to withdraw the plea on that basis would have been wholly fruitless.
Thus, we have completed our review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
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[1]All further statutory references are to the Penal Code unless otherwise indicated.
[2] In violation of sections 12022.53(b), 12022.53(c) and 12022.53(d).
